'To render one man liable in trespass for the acts of others, it must appear either that they acted in concert, or that the act of the one, ordinarily and naturally produced the acts of the others, Ascending in a balloon is not an unlawful act, but it is certain that the aeronaut has no control over its motion horizontally, but is at the sport of the wind, and is to descend when and how he can. His reaching the earth is a matter of hazard.
If his descent would according to the circumstances draw a crowd of people around him, either out of curiosity, or for the purpose of rescuing him from a perilous situation, all this he ought to have foreseen, and must be responsible for.'
Air Not Really Free.
"The general belief among people is, that the air is free. Not only free to breathe and enjoy, but free to travel in, and that no one has any definite jurisdiction over, or in any part of it. Now suppose this were made a legal doctrine. Would a murder perpetrated above the clouds have to go unpunished? Undoubtedly. For felonies committed upon the high seas ample provision is made for their punishment, but new provisions will have to be made for crimes committed in the air.
Relations of Owner and Employee.
"It is a general rule of law that a master is bound to provide reasonably safe tools, appliances and machines for his servant. How this rule is going to be applied in cases of aeroplanes, remains to be seen. The aeroplane owner who hires a professional aeronaut, that is, one who has qualified as an expert, owes him very little legal duty to supply him with a perfect aeroplane. The expert is supposed to know as much regarding the machine as the owner, if not more, and his acceptance of his position relieves the owner from liability. When the owner hires an amateur aeronaut to run the aeroplane, and teaches him how to manipulate it, even though the prescribed manner of manipulation will make flight safe, nevertheless if the machine is visibly defective, or known to be so, any injury which results to the aeronaut the owner is liable for.
As to Aeroplane Contracts.
"At the present time there are many orders being placed with aeroplane manufacturing companies. There are some unique questions to be raised here under the law of contract. It is an elementary principle of law that no one can be compelled to complete a contract which in itself is impossible to perform. For instance, a contract to row a boat across the Atlantic in two weeks, for a consideration, could never be enforced because it is within judicial knowledge that such an undertaking is beyond human power. Again, contracts formed for the doing of acts contrary to nature are never enforcible, and here is where our difficulty comes in. Is it possible to build a machine or species of craft which will transport a person or goods through the air? The courts know that balloons are practical; that is, they know that a bag filled with gas has a lifting power and can move through the air at an appreciable height.
Therefore, a contract to transport a person in such manner is a good contract, and the conditions being favorable could undoubtedly be enforced. But the passengers' right of action for injury would be very limited.
No Redress for Purchasers.
"In the case of giving warranties on aeroplanes, we have yet to see just what a court is going to say. It is easy enough for a manufacturer to guarantee to build a machine of certain dimensions and according to certain specifications, but when he inserts a clause in the contract to the effect that the machine will raise itself from the surface of the earth, defy the laws of gravity, and soar in the heavens at the will of the aviator, he is to say the least contracting to perform a miracle.
"Until aeroplanes have been made and accepted as practical, no court will force a manufacturer to turn out a machine guaranteed to fly. So purchasers can well remember that if their machines refuse to fly they have no redress against the maker, for he can always say, 'The industry is still in its experimental stage.' In contracting for an engine no builder will guarantee that the particular engine will successfully operate the aeroplane.
In fact he could never be forced to live up to such an agreement, should he agree to a stipulation of that sort. The best any engine maker will guarantee is to build an engine according to specifications."
